TechCrunch+ roundup: Due diligence roadmap, employment law basics, YC’s Michael Seibel

Last week, we ran an article by Gaetano Crupi, a partner at VC firm Prime Movers Lab, identifying three pillars required to support a Series B data room: a strategy memo, a pitch deck and a forecast model.

In a follow-up, he explains the next step: packaging this information for prospective investors to “create the blueprint and backbone for an in-depth Series B due diligence process.

If you’re preparing for a Series B, these articles explain exactly what investors are looking for and how each piece of content works individually and in tandem.

Full TechCrunch+ articles are only available to members.
Use discount code TCPLUSROUNDUP to save 20% off a one- or two-year subscription.

Crupi also discusses some of the less obvious aspects of Series B fundraising, such as the need for topic-specific breakout decks, a comprehensive due diligence questionnaire, and critically, how to put it all together.

If your startup still hasn’t achieved product-market fit, feel free to skip this article and get back to work. As Crupi notes:

The advice presented here will only help companies that have really good fundamentals. You have to have the goods — all the other stuff is window dressing that tips luck in your favor.

Thanks very much for reading,

Walter Thompson
Editorial Manager, TechCrunch+

‘Just break even’ may be the worst possible advice for startups in turbulent times

Dollar sign made out of cheese on a mousetrap; break even bad advice startups

Image Credits: Andriy Onufriyenko (opens in a new window) / Getty Images

A friend shared a photo on Twitter of a feral cat in NYC walking on the electrified third rail of a subway track.

It was dangerous, but as long as the animal avoided making contact with the ground and the rail simultaneously, it could very well have been the safest route to its destination.

Refusing to cut costs during a downturn is similar to walking on the third rail: Companies that can maintain this tricky balance can maintain growth that propels them to the next level, according to Igor Ryabenkiy, CEO and managing partner of AltaIR Capital.

“Founders tend to like the idea of breaking even as quickly as possible,” he writes.

“Although their company might not become a unicorn, it can now earn them a stable salary and dividends. But for an investor, this is terrible.”

4 employment law mistakes startups can stop making today

A slice of burnt toast with a sad face; employment law mistakes

Image Credits: Martin Diebel (opens in a new window) / Getty Images

There’s no nice way to say this: when it comes to onboarding new employees, most early stage startups are either inept or uninterested.

At that point in a company’s development, Speed and Growth are considered more important than basic paperwork. And since most first-time founders have no management experience, problems will eventually arise.

In her third article for TC+, attorney Kristen Corpion explores the risks associated with non-compliance, and describes four common mistakes that create problems down the road.

“By being proactive with addressing employment law issues early on, a startup can set itself up to scale more seamlessly,” she writes.

YC’s Michael Seibel clarifies some misconceptions about the accelerator

YC Demo Day 2022 image

Image Credits: Bryce Durbin / TechCrunch

In a conversation adapted from the Equity podcast, Michael Seibel, partner at YC and managing director of YC Early Stage, spoke about starting up during a downturn, why his accelerator is offering larger checks, diversity and other issues relevant to seed-stage startups.

In the middle of last year, we started asking the question, “What’s the revenue multiple here?” And we started seeing companies raising at 100x to 350x their revenue.

So if I have $3 million in revenue, I have a billion-dollar company. Any of us who’ve been around for longer than two seconds [knows] that doesn’t feel sustainable.

So our partners, Dalton Caldwell, Jared [Friedman] and I sat down that fall and we were like, “Let’s say that this doesn’t continue,” because that seems to be for sure. “What can we do to help YC companies in a downturn?”

TechCrunch+ roundup: Due diligence roadmap, employment law basics, YC’s Michael Seibel by Walter Thompson originally published on TechCrunch

4 employment law mistakes startups can stop making today

As the old saying goes, your people are your business’ most important assets. And that’s true for startups as well.

As we’ve seen over the past several years, attracting and retaining talented workers remains one of the biggest challenges startups face. Without enough employees, finding product-market fit and scaling a business can be extremely difficult, if not impossible.

While startups like to “move fast and break things,” when it comes to building a workforce, it’s important to slow down and ensure you’re complying with employment laws and putting in place sound employment practices.

In this article, we’ll run through four employment law mistakes that startups should avoid making. But first, let’s review the scope of laws that may affect your startup as well as some of the risks of non-compliance.

Which employment laws apply?

A poorly written employee handbook is often worse than no handbook at all.

All businesses have to figure out which employment laws apply to them. There are federal, state and local laws and regulations that may impose obligations on your startup, and these may be about everything from paid leaves to whether a non-compete agreement is enforceable.

The difficulty of figuring this out gets compounded when a business has different locations, because laws vary from state to state and city to city. Beyond jurisdictional distinctions, different laws and regulations will apply based on factors like the company’s size and number of employees. For many federal laws, 50 employees is an important threshold — for example, private employers with fewer than 50 employees are not covered by the Family and Medical Leave Act, but they may be covered by state family and medical leave laws.

The patchwork of various employment laws and regulations that may apply to your startup can be confusing. That’s why it’s important to focus on these issues and get help when necessary so your startup can understand and comply with its obligations.

4 employment law mistakes startups can stop making today by Ram Iyer originally published on TechCrunch

Starting up remotely? Keep these labor laws and tax guidelines in mind

When it comes to remote employment, employees and employers both face a plethora of benefits and pitfalls. While the cultural pros and cons have been covered, considerations from a setup and maintenance standpoint largely haven’t been addressed. There are important legal and tax implications to keep in mind when it comes to a remote workforce.

Virtual teams existed well before COVID-19, but over the last two years, employees turned not being able to go into an office into a benefit by moving out of their employer’s state. For startups, hiring out-of-state employees became common, as remote-first businesses were created from scratch and talent was vastly more critical than location.

Should your startup start or go remote, keep the following in mind.

Tax implications

Remote workforces have tax implications for their companies. Specifically, there is a state payroll withholding tax. This is generally required for the state where an employee works or provides services, regardless of an employer’s location. This means your startup may need to register and withhold income taxes in several states.

These are complicated issues, and often, the best approach is to engage an expert early.

Here are the questions we ask clients:

  1. What are your sales and revenue by state?
  2. Where are your employees located?
  3. Where is your office located, as well as any other property?

Dollar amounts and property locations matter because each state has a different threshold when it comes to defining whether a nexus (more on that in a moment) has been established or not.

This isn’t something you can ignore. States do pay attention. When you register with a government agency, the state receives your tax ID number and other identifying information. This means you’ve got a presence in that state, and your business will be monitored and pursued for any resulting tax liabilities.

For example, one of our clients was stalled during an acquisition last year because they were discovered to be out of compliance with their remote workforce. So, it’s critical to register in each state where you have employees.

Considering the “nexus”

Dear Sophie: Any advice on visa issues for new hires?

​​Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

TechCrunch+ members receive access to weekly “Dear Sophie” columns; use promo code ALCORN to purchase a one- or two-year subscription for 50% off.

Dear Sophie,

I run operations at an early-stage startup, and I’ve been tasked with hiring and other HR responsibilities. I’m feeling out of my depth with hiring and trying to figure out visa issues for prospective hires.

Do you have any advice?

— Doubling Down in Daly City

Dear Doubling,

I hear a lot from people like you who are in the same situation at early-stage startups. This came up when I chatted recently with Erin Teter and Lydia Buurma for my podcast. Teter and Buurma are experienced HR professionals who I’ve known for years. They’re currently working in HR at LINQ, an edtech company that provides cloud-based administration and finance solutions for states, districts and schools.

“HR is a full-time job,” Buurma said. “When you talk about creating company culture, setting the company’s mission and values, you want to include people in that discussion and you want to get buy-in from core employees and figure out what characteristics future employees that you want to bring in should have.”

A composite image of immigration law attorney Sophie Alcorn in front of a background with a TechCrunch logo.

Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)

The next best option

If your startup cannot afford to bring on a full-time HR person right now, Teter recommends that your company at least bring in an HR consultant to help evaluate your company’s situation, set up practices and assist with issues.

“Usually consultants are connected with immigration attorneys and other experts who can help you work through the process,” she said.

Dear Sophie: Does it make sense to sponsor immigrant talent to work remotely?

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

Extra Crunch members receive access to weekly “Dear Sophie” columns; use promo code ALCORN to purchase a one- or two-year subscription for 50% off.

Dear Sophie,

My startup is in big-time hiring mode. All of our employees are currently working remotely and will likely continue to do so for the foreseeable future — even after the pandemic ends. We are considering individuals who are living outside of the U.S. for a few of the positions we are looking to fill.

Does it make sense to sponsor them for a visa to work remotely from somewhere in the United States?

— Selective in Silicon Valley

Dear Selective,

Thanks for reaching out — I’m always happy to hear about another fast-growing startup! If some of your leadership team is also abroad, check out the recent announcement about the new International Entrepreneur Parole program for founders.

It can make great business sense to sponsor international talent for a visa even if the position involves working remotely from a location inside the U.S. With the right legal setup, your team can work from home in Silicon Valley, nearby in California, or in another state where the cost of living is not quite as high. We’ve received this question from many employers, and many of our clients are proceeding with sponsoring international talent with visas and green cards for work-from-home positions.

I discussed this and other issues related to recruiting and work trends with Katie Lampert for my podcast. Lampert leads the talent acquisition and infrastructure group at General Catalyst, a VC firm that invests in seed to growth-stage startups in the U.S. and abroad. She advises companies in the General Catalyst portfolio on all things talent-related, including establishing company culture, creating a company’s infrastructure for recruiting and retaining talent, and planning for the future.

“Recruiting is going to be more global, which is exciting,” Lampert said during our discussion. “This will have a really positive effect on cultural diversity in the workforce. Studies show that a more diverse workforce leads to greater financial success.”

In fact, the latest McKinsey & Co. report on diversity, “Diversity wins: How inclusion matters,” found that companies with ethnically and culturally diverse executive teams are 36% more likely to achieve above-average profitability than companies with less diverse teams. McKinsey has issued three reports on diversity, and with each subsequent report, the business case for ethnic and cultural diversity and gender diversity in corporate leadership has grown stronger.

In addition to boosting profitability, bringing international talent to the United States to join your startup offers a host of other benefits as well.

Uber loses gig workers rights challenge in UK Supreme Court

Uber has lost a long running employment tribunal challenge in the UK’s Supreme Court — with the court dismissing the ride-hailing giant’s appeal and reaffirming earlier rulings that drivers who brought the case are workers, not independent contractors.

The case, which dates back to 2016, has major ramifications for Uber’s business model in the UK — and likely regionally, as similar challenges are ongoing in European courts.

European Union lawmakers are also actively eyeing conditions for gig workers, so policymakers were already facing pressure to clarify the law around gig work — today’s ruling only increases that.

The UK Supreme Court judgement can be found here.

We’ve reached out to Uber for comment.

The court rejected Uber’s argument that it merely acted akin to a booking agent for drivers, noting that the company would have no means of performing its contractual obligations to passengers (nor complying with its regulatory obligations as a licensed private hire vehicle operator) — “without either employees or subcontractors to perform driving services for it”.

The court also weighed how Uber’s business operates in light of UK employment law which provides for a ‘worker’ status — a classification which is neither employed nor self-employed — considering other case law and the detail of the drivers’ relationship with Uber in coming to its interpretation of the legislation.

Its conclusion is that “the transportation service performed by drivers and offered to passengers through the Uber app is very tightly defined and controlled by Uber”.

“Although free to choose when and where they worked, at times when they are working drivers work for and under contracts with Uber (and, specifically, Uber London),” the court wrote, noting its agreement with the earlier tribunal ruling.

In the judgement it has emphasized a number of aspects of that ruling as important — namely: Pay/renumeration (since Uber drivers are not free to set the price of rides); the contractual terms of the performance of the service (again, drivers are not free to set these; Uber does); and Uber’s control over service provision, such as via the use of algorithmic management of logged in drivers and through its ownership of the technology infrastructure.

The court also noted how Uber restricts communications between driver and passenger to a minimum.

In a discussion of how Uber uses driver ratings as another tool of control, the court noted that these are never disclosed to passengers (i.e. to help them inform/choose their choice of driver) — but are exclusively for Uber’s use “purely as an internal tool for managing performance and as a basis for making termination decisions where customer feedback shows that drivers are not meeting the performance levels set by Uber”.

“This is a classic form of subordination that is characteristic of employment relationships,” it added.

This story is developing… refresh for updates… 

In recent days — and likely in anticipation of this verdict — Uber has kicked off a lobbying effort in Europe calling for deregulation of platform work.

Uber argues that without a carve out from employment laws platforms’ hands are tied over how far they can go to offer workers a better deal.

It says it’s pushing for some of the same ‘principles’ that featured in the Prop 22 ballot initiative which ride-hailing giants Uber and Lyft spend hundreds of millions of dollars pushing in California, going on to win a carve out for delivery and transport work from employment reclassification there last year.

However, responding to Uber’s EU white paper this week, the academic research group, Fairwork, accused it of downplaying its ability to make changes to improve working conditions on its platform.

Instead, it said the tech giant is trying to legitimize a lower level of protection for platform workers than most European workers benefit from — urging lawmakers to focus on expanding and strengthening employment protections, not watering them down.

Dear Sophie: What are my F-1 and other immigration options after graduation?

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

“Dear Sophie” columns are accessible for Extra Crunch subscribers; use promo code ALCORN to purchase a one or two-year subscription for 50% off.

Dear Sophie: I’m graduating this fall with a Bachelor’s degree in molecular and cell biology. I hope to find a way to maintain my F-1 status to graduate. After graduation, I’m planning on applying for OPT.  I really want to work at a biotech startup. What options do I have to remain in the U.S. after OPT ends?

—Bright-Eyed in Berkeley

Dear Bright-Eyed,

Stay the course — you’re almost at the finish line. Even with everything going on, if you can maintain your F-1 status for the last semester, you should still be able to get OPT and STEM OPT and possibly a green card. As you know, OPT enables international students on F-1 visas to work for 12 months in their field of study after completing at least one academic year of studies. Like you, most students choose to wait to begin OPT after graduation. Many companies are starting to take the pledge to support international students.

Deliveroo criticized over “inadequate” PPE provision and income support for riders risking coronavirus exposure

UK food delivery giant Deliveroo has been called on to do more to protect riders’ incomes and safety during the coronavirus crisis. The ‘meals-on-wheels’ service couriers provide makes them key workers in a pandemic characterized by social distancing and ‘shelter in place’ lockdowns, is the key argument.

More than forty MPs from across the political spectrum — including the former leader of the Labour Party, Jeremy Corbyn and veteran Conservative MP, Sir Peter Bottomley — have co-signed a letter urging the company to provide all riders with adequate personal protective equipment (PPE), given the risks faced to those who keep working doing deliveries during the COVID-19 pandemic.

The letter also calls for riders who contract the disease or need to self isolate because of exposure risk to be given “full pay” — rather than the £100 per week Deliveroo has sets aside for riders via a coronavirus emergency fund.

The MPs argue the fund “is simply not enough to compensate a courier for having to self-isolate and forces many to work through potentially early symptoms in the hope of it not being COVID-19″.

The fund has also proven to be inaccessible for many riders as they are not able to meet the eligibility criteria, as they have not completed the numbers of orders required. The fund should be there to assist everyone during this testing time; self isolation should not be a privilege,” they add.

The letter also calls for a “minimum standards guarantee” — given couriers’ key worker role delivery food during the crisis — arguing they should be provided with “a real living wage plus costs, holiday pay and sick pay”.

Another demand is for Deliveroo to allow “high risk” couriers — such as those who have pre-existing health conditions that may make them more vulnerable to the virus — to self isolate for 12 weeks with “full pay”.

Regular testing for riders is another demand.

The MPs also call for a halt to terminations until the end of the crisis, arguing: “It is clear that Deliveroo headquarters staff is stretched and does not have adequate time and resources to investigate customer and restaurant complaints which could lead to riders being unfairly terminated.”

Contacted for a response to the MPs’ demands, Deliveroo aggressively rejected accusations it has been lax in providing riders with adequate PPE.

The MPs argue the company’s current opt-in system for PPE provisions is “inadequate and ineffective” — urging it to take a proactive approach instead by providing “necessary safety equipment to all”.

The letter also claims some riders that have opted in the system have not been provided with the promised PPE. “The riders ordered this PPE from Deliveroo on the 26th of March and have not yet received any provisions (14th of April),” they write. “Your negligence is putting your riders and your customers at risk, especially now that you are encouraging hospital staff to order from your platform.”

The Independent Workers Union of Great Britain’s (IWGB), which has been campaigning for Deliveroo couriers to gain workers rights — and has today launched a petition in support of the MPs’ demands to Deliveroo — told us that many riders still haven’t received any PPE after requesting it on March 26, querying how much PPE has been despatched by the company to its ‘30,000’-strong workforce to date.

The union also said it’s heard from riders who have received PPE who told it the amount provided — four masks and four small bottles of hand sanitizer — would only last them for around a week.

Asked about this, Deliveroo told us it has ordered 135,000 masks and 145,00 hand sanitizers for UK riders to date — though it did not provide a figure on how many items have actually been delivered to riders, saying only that it has delivered “tens of thousands” of masks and hand sanitizers.

Additionally, it said it has reimbursed all riders “up to £20” to cover any PPE and hand sanitiser they procure and pay for themselves — as an interim policy.

On pay, Deliveroo claimed the £100 per week emergency provision it offers for COVID-19 sick (or isolating) riders, via its emergency fund, is higher than the rate of Statutory Sick Pay available to employees.

On the call for a minimum standards guarantee, Deliveroo reiterated its long-standing argument that riders value the flexibility afforded by its business model which involves them working as independent contractors, not contracted workers.

It also disputes that the IWGB’s campaign for riders to gain workers’ rights has widespread support among Deliveroo riders. But it noted that it has continued to call for updates to UK employment law which would enable it to provide more support for riders without jeopardizing flexibility.

It also told us it was involved in providing input to the government when it was working on support measures for self employed people during COVID-19. This support can cover riders, per Deliveroo, which notes that anyone who has been self employed for more than a year will receive three months of their average earnings based on previous years under this national government scheme.

Even if riders continue to ride and earn during the crisis the support still applies, it added. On vulnerable people, its line is therefore that it would never suggest such people ride during this time.

Rather it suggests they seek support under the government’s Self Employment Income Support Scheme, as well as the wider UK social security system.

On rider terminations, Deliveroo disputed that it is unable to properly focus on this area during the pandemic, arguing that contract terminations are an important safety tool at this time — such as in instances where riders have ignored public health requirements to be socially distant when making deliveries.

The company added an option for customers to request so-called ‘contactless’ deliveries early on in the crisis in Europe, removing the requirement that couriers hand food packages direct to customers. Though it was only optional at that point.

On testing, Deliveroo said it has worked closely with the government to ensure riders are entitled to claim free COVID-19 tests — noting that riders were in the first group of people outside of the National Health Service and care home staff able to be able to access these tests.

However the company is not itself sourcing and making tests available to riders. Rather it’s indicating they do the leg work of ordering them via the government’s online self-service portal.

The UK government, meanwhile, has faced weeks of sustained criticism for failing to provide enough tests for people who need them, with accusations of inadequate provision and inaccessible test centre locations which require people to have a car to access a test continuing to trouble Boris Johnson’s government.

So Deliveroo’s message that riders essentially ‘fall back’ on government testing provision may offer little comfort for workers at a front line of exposure to the virus.

In a statement responding to the MP’s letter Deliveroo added:

At Deliveroo, riders are at the heart of everything we do and we are working hard to support them during this unprecedented time. This includes distributing PPE kit to riders across the UK, supporting riders financially if they are unwell and keeping riders safe through contact-free delivery.

We are incredibly grateful and proud of the vital role riders are playing in their communities, helping the public, including the vulnerable and isolated, receive the food they need and want. We have dedicated teams on hand to support riders every step of the way through this crisis.

The London-based food delivery giant has raised some $1.5BN in venture capital to date, according to Crunchbase, including a whopping $575M round led by Amazon last year.

The changing face of employment law during a global pandemic

Prompted by Jeff Bezos’s plans to test all Amazon employees for the virus that causes COVID-19, we wondered whether employers can mandate employee testing, regardless of symptoms. The issue pits public safety against personal privacy, but limited testing availability has rendered the question somewhat moot.

But as the World Health Organization and U.S. Centers for Disease Control and Prevention have noted, asymptomatic COVID-19 carriers can spread the virus without realizing they’re infected. To learn more about workers’ rights in this arena, we spoke to Tricia Bozyk Sherno, counsel at Debevoise & Plimpton, who focuses on employment and general commercial litigation.

The answer, for now, is not entirely straightforward, though updates from the U.S. Equal Employment Opportunity Commission could make the situation clearer going forward as more tests are made available and state governments begin pushing to reopen businesses.

Sherno offered a fair amount of insight into the EEOC’s updated guidance and made some predictions about how things may look for both employers and workers going forward.

TechCrunch: Prior to the COVID-19 pandemic, what sorts of laws governed an employer’s ability to test employees for infectious diseases?

Tricia Bozyk Sherno: Covered employers (employers with 15 or more employees) must comply with the requirements of the Americans with Disabilities Act (ADA), which limits an employer’s ability to make disability-related inquiries or require medical examinations. (Note that certain states may also have similar statutes in place.) Generally, disability-related inquiries and medical examinations are prohibited by the ADA except in limited circumstances. A “medical examination” is a procedure or test that seeks information about an individual’s physical or mental impairments or health — so infectious disease testing would fall into this category.

Can employers mandate COVID-19 testing?

COVID-19 commanded an understandably outsized presence in Jeff Bezos’s annual shareholder letter last week. The Amazon exec laid out the company’s plans for addressing the pandemic on a number of different levels, including building a testing lab for employees, along “with regular testing of all Amazonians, including those showing no symptoms.”

It has become a given that Amazon would test employees exhibiting fever and other COVID-19 symptoms. The company is, after all, one of the primary retail backbones for the U.S. and a number of other countries. And while the World Health Organization has stated that it doesn’t believe the virus can be transmitted via parcels, the virus has the potential to spread extremely quickly within a warehouse.

The notion of testing employees who don’t exhibit symptoms has been a less pressing question, however, due in no small part to the limited availability of testing kits. But as the WHO, CDC and other organizations have made abundantly clear, it’s entirely possible to carry the virus while remaining asymptomatic — a fact that’s made the novel coronavirus all the more scary.

Once testing becomes more readily available, it will be important to determine whether employers can, in fact, mandate testing, regardless of whether employees exhibit symptoms. There are important matters of both public safety and personal sovereignty to take into account.

The U.S. Equal Employment Opportunity Commission has been actively updating guidance for employers under the Americans with Disabilities Act:

The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.

Among the updated issues to deal with the pandemic is screening, which includes a temperature check. “During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus,” the EEOC continues. “For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.”

We put the question to Tricia Bozyk Sherno, counsel at Debevoise & Plimpton, who focuses on employment and general commercial litigation.

“For current employees, a medical inquiry or exam is permitted for current employees only if the employer has a reasonable belief that a particular employee will provide a ‘direct threat’ due to a medical condition,” Sherno explains. “For new employees, the ADA permits employers to conduct medical examinations after a conditional offer of employment is made, but before an individual begins working, provided that all employees in the same job category must be subject to the same examination requirement. The primary ‘medical examination’ considered by the existing EEOC guidance is temperature measurements. Available guidance does not yet address COVID-19 testing.”

The current rules around testing aren’t entirely clear under current guidelines, but expect that to continue to evolve as testing becomes more widely available and state governments begin to loosen stay-at-home restrictions. We can likely expect that the guidance will no longer apply once the pandemic is no longer deemed a threat. What remains consistent under ADA guidelines, however, is the illegality of firing an individual over a condition like COVID-19.

“The ADA prohibits discrimination against individuals with a disability and requires employers to provide reasonable accommodations for such individuals,” says Sherno. “Local and state laws may also provide additional protections for impacted employees.”